Opinion
Argued October 5, 1916
Decided November 21, 1916
Lamar Hardy, Corporation Counsel ( Terence Farley and Charles McIntyre of counsel), for appellant. John E. O'Brien for respondent.
The board of education has power to adopt by-laws fixing the salaries of all members of the supervising and teaching staff. (Greater New York Charter [L. 1901, ch. 466], § 1091.)
It is, however, the duty of the board of aldermen, upon recommendation of the board of estimate and apportionment, to fix the salary of every officer or person whose compensation is paid out of the city treasury other than day laborers and teachers, examiners, and members of the supervising staff of the department of education. (Greater New York Charter, § 56.) The relator is not a member of the supervising or teaching staff. The board of education while a corporation is one of the administrative departments of the city. (Greater New York Charter, §§ 96, 108, 1062; Clarke Co. v. Board of Education of N.Y., 156 App. Div. 842; affd., 215 N.Y. 646. )
The power to fix the salary of a typewriting copyist in the employ of the department of education rests with the board of aldermen. ( Hogan v. Board of Education, N.Y., 200 N.Y. 370; People ex rel. Walters v. Prendergast, 171 App. Div. 941; affd., 218 N.Y. 629; Sauerbrunn v. Board of Education, N.Y., 150 App. Div. 407; affd. on opinion below, 208 N.Y. 550.)
Section 56, from which we have quoted, relates to employees of the board of education. ( Hogan v. Board of Education, N.Y., supra.) The board of education may appoint such officers, clerks or subordinates in its administration service as it may deem necessary (Greater New York Charter, § 1067), but such power is subject to reasonable regulation and control in behalf of the city.
Section 226 of the Greater New York charter expressly provides that the budget "shall be prepared in such detail as to the titles of appropriations, the terms and conditions, not inconsistent with law, under which the same may be expended."
Under that provision of the charter the board of estimate and apportionment and the board of aldermen may prescribe reasonable terms and conditions on which the amounts provided by the budget can be expended. ( People ex rel. Plancon v. Prendergast, 219 N.Y. 252, handed down herewith.)
A resolution was passed by the board of estimate and apportionment and adopted by the board of aldermen in connection with the appropriation and budget of 1915 which provided:
"That this, the Budget of The City of New York, as hereby made in pursuance of section 226 of the Greater New York Charter, shall be administered under the following terms and conditions: * * *
" Second. That no change shall be made by any Board, or head of an Office Bureau or Department in the City or County Governments in the schedules of `Salaries, Regular Employees;' `Salaries, Temporary Employees;' `Wages, Regular Employees;' `Wages, Temporary Employees;' `Fees and Commissions,' herein contained, except when authorized by twelve (12) votes of the Board of Estimate and Apportionment, and that no request for changes shall be considered except as follows: * * *
"(c) That vacancies occurring after January 31, 1915, in schedules supporting appropriations in this budget for `Salaries, Regular Employees' or `Salaries, Temporary Employees' shall be filled only after certificate by the duly authorized representatives of the Board of Estimate and Apportionment that the title and compensation for such vacant position conform to the standard title, work, specifications and compensation grades fixed by the Board of Estimate and Apportionment. This provision shall not apply to vacancies occurring in positions for which the title and compensation shall have previously been standardized by this Board. In making appointments to vacant positions for which standard titles and compensations have been fixed by this Board, such appointment shall be made at the lowest rate within the grade for such position, unless this requirement is specifically waived by resolution of the Board."
The money appropriated for the $750 position as a typewriting copyist was so appropriated subject to the terms and conditions stated in the resolution quoted.
We are of the opinion that the board of education is bound by the limitations on the appropriations so far as they affect the relator and that the comptroller should not be required to approve and audit the supplemental payroll. ( People ex rel. Plancon v. Prendergast, supra.)
The order should be reversed and the application for writ of mandamus denied, with costs in all courts.
HISCOCK, CUDDEBACK, HOGAN, CARDOZO and POUND, JJ., concur; WILLARD BARTLETT, Ch. J., absent.
Order reversed, etc.